Dadulal Mawasi @ Vidhayak vs The State Of Madhya Pradesh
2022 Latest Caselaw 3148 MP

                                   1               Cr.A. No.1039/2020


     IN THE HIGH COURT OF MADHYA PRADESH AT
                    JABALPUR

                              BEFORE

        HON'BLE SMT. JUSTICE NANDITA DUBEY

             CRIMINAL APPEAL No. 1039 of 2010

     Between:-

1.   DADULAL MAWASI @ VIDHAYAK ,
     S/O SHRI HAKKA MAWASI ,
     AGED ABOUT 35 YEARS, NAYAGAON
     DIST. SATNA (MADHYA PRADESH)

2.   KANDHILAL KEWAT,
     S/O VISHAL KEWAT, AGED ABOUT 45 YEARS,
     CHHERPURWA, P.S. NAYAGAON,
     DIST. SATNA (MADHYA PRADESH)
                                                      .....APPELLANTS
     (By Ms. Sushila Paliwal, Advocate as Amicus Curiae )

     AND

     THE STATE OF MADHYA PRADESH
     THROUGH ARAKSHI KENDRA NAYAGAON
     SATNA (MADHYA PRADESH).

                                                     .....RESPONDENT
     (By Shri Manu V. John, Panel Lawyer)


            Arguments heard on   : 27.10.2021
           Judgment delivered on : 07.03.2022




                         JUDGMENT

This criminal appeal has been filed by the appellants

being aggrieved by the conviction and sentence dated 19.03.2010

passed by Special Judge (M.P. Dakaiti Aur Vyapharan Prabhavit

Kshetra Adhiniyam), Satna in S.T. No.42/2009, whereby the

appellants have been found guilty for the offence punishable under

Sections 148 and 307 of I.P.C. read with Section 9/11 of M.P. Dakaiti

Aur Vyapharan Prabhavit Kshetra Adhiniyam,1981 (hereinafter referred

to as the Adhiniyam) and Section 11 read with Section 13-A of the

Adhiniyam and sentenced to undergo Rigorous Imprisonment for two

years and fine of Rs.1,000/- each under Section 148 of I.P.C., rigorous

imprisonment for ten years each under Section 307 of I.P.C. read with

Section 9/11 of the Adhiniyam and rigorous imprisonment for 3 years

with fine of Rs.1,000/- each under Section 11 read with Section 13-A

of the Adhiniyam with default stipulations.

2. As per prosecution, SDO(P) Chitrakoot received an

information that 12-14 members of the gang of IS 229 Dr. @

Thokiya @ Ambika Patel armed with rifles have assembled near

Maunibaba Ashram and planning to commit some offence. On

this information, three police parties were dispatched. The police

parties reach near the Ashram, and asked the dacoits to surrender,

however, instead of surrendering, the dacoits started firing,

therefore, the police party started firing in self defence. The

dacoits ran away towards forest taking shelter of the trees,

leaving behind two bags containing ammunition and diary etc.

One of the decoit namely, Dadulal Mawasi @ Vidhayak was

however apprehended with one short barrel country made pistol

and empty catridges. From the spot, 8 empty catridges of 315

bore pistal and 6 empty catridges and 12 live catridges were also

recovered.

3. Dadoolal Mawasi, who was apprehended on the spot

on 05.11.2016 with one 12 bore country made pistol, 6 empty

catridges and five live catridges of 12 bore pistol. In his

memorandum, he disclosed the name of members of the gang,

who ran away from the spot.

4. During the course of investigation, on mukbir

information, Kandhilal was arrested on 30.12.2006 and country

made pistol and live catridges were also recovered from him.

Armour report was obtained and spot map was also prepared.

5. Upon completion of the investigation, charges sheet

was filed against the present appellants and 11 others (who were

absconding) for their prosecution under Section 147, 148, 149,

307 of I.P.C. read with Section 25/27 of Arms Act and Section

9/10 of the Adhiniyam in the Court of JMFC Satna, who

committed the case to the Court of Sessions Judge, Satna, who in

turn made over the case to the Court of first Additional Sessions

Judge, Satna for trial.

6. The trial Court framed the charges against the

appellants under Sections 148 of I.P.C., 307 of I.P.C. read with

Section 9/11 of the Adhiniyam and Section 11 read with Section

13-A of the Aadhiniyam. The appellants denied the charges

framed against them and prayed for trial. The prosecution has

examined 11 witnesses in support of their case. The appellants in

their examination under Section 313 of Cr.P.C. took the defence

that they have been falsely implicated, as the police has arrested

them from their homes, further no weapon was seized from them.

However, no defence witness has been produced in their support.

7. The learned Additional Sessions Judge after

analyzing and appreciating the evidence on record, found the

appellants guilty as charged and convicted and sentenced them as

aforestated.

8. Contention of Smt. Sushila Paliwal, Amicus curiae

for the appellants is that as per the evidence of P.W.-8 Gopal

Dabar, 23 rounds were fired from the side of police party and

equally in cross fire by the dacoits, but surprisingly not a single

injury was caused to any person. It is argued that despite such

heavy firing no empty shells or catridges were recovered from

the spot. Moreover, there is no ballistic report to conclusively

show that the gun seized from the appellants was used in the

incident. It is further contended that appellant No.2 was arrested

from his house after one month of alleged incident and false

seizure has been made against him. It is pointed out that the

seizure witnesses Munnalal (P.W.-4) and Pappu Nishad (P.W.-6)

have not supported the seizure memo (Ex. P-8).

9. Per contra, learned counsel for the State has

supported the impugned judgment. He placed reliance on the

deposition of P.W.-8, ASP Gopal Dabar and P.W.-10 Inspector

Hemant Tiwari and Armor report (Ex. P-18).

10. I have considered the arguments advanced by the

learned counsel for the parties and perused the record.

11. The fact that seizure witnesses have turned hostile

does not by itself discredit evidence of the investigating officer,

unless there is some thing in his cross-examination to disbelieve

him. It is evident from the statement of P.W.-9 Inspector Hemant

Tiwari that he prepared the spot map (Ex. P-3) and collected

from spot not only empty catridges of 315 bore and 12 bore but

also a rexine bag left behind by the decoit's gang which

contained some change of clothes, letter pad in the name of

"Dasu Samrat Doctor @ Ambika Patel @ Thokiya" etc.

Pachnama (Ex.P-2) shows that Daduram was arrested from the

place of incident. In the present case, there is nothing in the

cross-examination of P.W.-10 K.P. Tripathi, which may discredit

his testimony.

12. Furthermore, his testimony is corroborated by

Kaptan Singh (P.W-11), K.P. Tripathi (P.W.-10) and Inspector Jai

Singh Bagri (P.W.-5). This arrest and seizure from appellant No.1

is also verified from the Rojnamcha Sana No.829 (Ex.P-16).

Simply on the basis of some doubts or apprehension, the entire

prosecution version with regard to appellant No.1 cannot be

discarded.

13. As regards appellants No.2, there are major

discrepancies and contradictions in the testimony of prosecution

witnesses. According to Munnalal (P.W.-4), appellant No.2 was

arrested on 30.12.2006 from his house, i.e., after nearly 55 days

of the incident, whereas, according to P.W.-9 Hemant Tiwari, he

was arrested on spot on the date of incident. Moreover, The

armor report (Ex.P-18) showing that the gun seized from the

appellant was in working condition is only a corroborative piece

of evidence. In absence of the ballistic report that empty

catridges/casings found at spot were fired from the katta seized

from appellant No.2 or any other clinching evidence, which may

prove his presence at the spot on the date of incident, he cannot

be connected with the incident. Therefore, appellant No.2 can

only be convicted under Section 11 read with Section 13-A of the

Adhiniyam and not under Sections 148, 307 read with Section 9/11

of the Adhiniyam. He is acquitted from the charge under Sections

148, 307 read with Section 9/11 of the Adhiniyam.

15. The appellant No.2 has already undergone about 4 years

seven months jail sentence. Having regard to the facts and

circumstances of the case, it is just and proper to reduce the sentence

of appellant No.2 to the period already undergone by him.

16. Resultantly, this appeal on behalf of appellant No.1 is

dismissed, whereas for appellant No.2, it is partly allowed and he is

sentenced to the period already undergone by him.

17. It is informed that appellant No.1 has already served out

his sentence, whereas appellant No.2 is on bail since, 28.07.2011. His

bail bonds stand discharged.

18. A copy of this judgment be sent to the Court below

alongwith record for information and compliance.

                                           (Nandita Dubey)
                                                Judge
SMT. GEETHA NAIR                            07/03/2022
  gn 16:28:29 +05'30'
2022.03.07